주식회사 법정자본제도의 국제적 개혁동향과 입법 과제 － 주주와 채권자의 이해조정을 중심으로 －

Abstract

The corporate law and capital market law have been more rapidly changed than other legal areas and become the core subject of legislative reforms taken in the international dimension since the middle of '90's. The legal capital regime, which is substantially different between the European and American corporate law structure. is one of the most serious and subtle topic in the reform. The Japanese corporate law which was traditionally based on the European legal system has been approaching closer and closer to the American one. But Korean 2008 revision bill of stock corporation law, which is now under public disclosure for the legislation, stands at the middle stage of European and American system. The legal capital regime is said to be the rule that share capital and reserves should not be distributed to shareholders, except for the reduction of capital and dissolution. Recently many countries have reformed the legal capital system for mitigating the rigidness of traditional regulation generally required in the European stock corporation law and enhancing the protection of shareholders other than creditors, which is similarly modelled after the american corporate law. The reform of the legal capital regime in the revision bill is almost same as the international reforming trends. This paper suggests that the stock corporation law should also retain some traditional principles in the future. First, the stakeholder capitalism should not be disregarded only for the shareholder protection, which is a principle purpose in american shareholder capitalism. Second, the corporate law should not be generally regarded as nexus of contracts, but should be done as a public policy for the variety of interest groups like shareholders, creditors, employees, and community at least in the public companies. Third, rule of prior regulation should be maintained for effectively protecting the shareholder opportunistic behavior, unfairness between majority and minority shareholders and reduction of corporate asset fundamentals. Moreover, this paper recommends some basic guidelines for the purposes. First, the share capital and authorized capital system should not be modelled after american regime, which is now being under abolition, and Second, property in kind like labor or services rendered should be permitted to be paid as share capital by enacting or revising not the corporate law, but the special acts governing the venture business or high technical industries. Third, the current realised profit test as a calculating standard of corporate dividend should be retained in the future because the american insolvency test has lots of moral hard and legal risks in case of future management failure or domestic or global economic crisis. In conclusion, not only unreasonableness of the market forces, but also socio-economic hazards which concept of laissez-faire contract might result in corporate world should be seriously taken into account in the reform of legal capital regime in the stock corporation law.